Every town and community in Massachusetts has their own set of ordinances and bylaws that dictate what residences and businesses can and cannot do with fences and boundaries. As we discussed previously, we are going to take a closer look at each of the cities we service and review all of the State, County and local laws that fence owners need to be aware of and comply with.
The Importance of Fence Law
As a reminder, it is the responsibility of every fence owner, or potential owner, to take the time to understand what fence laws are applicable to their situation. If you’re building a fence, or have a fence that is in need of repair, there are state and local laws that apply to your situation. While we will be documenting all of the published ordinances for your area, we still recommend that once you review them, you seek further clarification and confirmation if you find one or more laws are going to impact your property. Furthermore, if you’re a member of an HOA or housing community, check with your organization for any bylaws which may further affect your fencing.
Massachusetts State Fence Law
In the State of Massachusetts, the State Constitution enumerates a series of fence laws and procedures in Chapter 49. Within the chapter are 21 sections regarding fencing. While we’re not going to reprint every section here, we’ll list and link to each section so you can refer to any that are relevant to your fencing situation.
Section 1 – Fence viewers; appointment; tenure
Section 2 – Definition of fences
Section 3 – Maintenance of partition fences
Section 4 – Failure to maintain partition fence; proceedings by adjoining occupant
Section 5 – Remedy for repair of deficient fence
Section 6 – Disputes regarding repairs; arbitration
Section 7 – Remedy for repair of deficient fence assigned by fence viewers
Section 8 – Remedy for repairing more than just share of partition fence
Section 9 – Construction and maintenance of fences between lands divided by a river
Section 10 – Fences on lands owned in severalty and occupied in common; construction
Section 11 – Maintenance of fences surrounding land laying common
Section 12 – Purchase of rights in fence
Section 13 – Enclosing of formerly unenclosed land; liability of owner; exception
Section 14 – Boundary disputes
Section 15 – Rebuilding of fence on true boundary; duties of adjoining owners
Section 16 – Fence viewers; jurisdiction where fence is on town boundary
Section 17 – Water fences
Section 18 – Fence viewers; powers
Section 19 – Penalty for misfeasance
Section 20 – Fees
Section 21 – Fences deemed a private nuisance; right of action
Make sure you take a moment to review each section that applies to your property or issue.
Massachusetts State Constitution, Chapter 49: Fences, Fence Viewers, Pounds and Field Drivers: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter49
Additionally, if your property, whether it’s a building or fence, serves as a boundary for a public way (such as a street or highway), there are additional fence laws which may apply to under Chapter 86, Boundaries of Highways and Other Public Places, and Encroachments Thereon.
Section 1 – Erection of monuments
Section 2 – Buildings or fences as boundaries
Section 3 – Encroachment on public ways
Section 4 – Removal of encroachments
Section 5 – Removal of gates, rails, bars or fences upon or across ways
Section 6 – Barbed wire fences
Section 7 – Removal of unused poles, structures, etc. from public ways
Massachusetts State Constitution, Chapter 86: Boundaries of Highways and Other Public Places, and Encroachments Thereon: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter86
Key Points:
The Definition of a Fence
In the state of Massachusetts, a fence is a barrier at least “four feet high, in good repair, constructed of rails, timber, boards, iron or stone.” This covers most fences, but Massachusetts has also designated less ordinary constructs to be fences: “brooks, rivers, ponds, creeks, ditches and hedges, or other things which the fence viewers consider equivalent thereto” are also considered to be legal fences. It is important to note that these barriers must be in good repair to be considered legal fences, and that a fence with substantial wear or breakage is not legal and can be considered a public nuisance.
Six Feet Restriction
While height restrictions are different in some districts, Massachusetts state regulation mandates that residential fences can be no higher than six feet in back yards and four feet in front yards. While this most directly applies to constructed fences, it also applies to natural fences such as trees, bushes or shrubbery in some districts. When planting a natural barrier, be sure to consult the local ordinances concerning height restrictions.
Massachusetts law allows for one-time exceptions, called variances, to the six foot rule in select cases. To receive an exception, fill out a request at the local City Hall including a detailed description of the circumstances of your need for an exception.
Shared Fences
Shared fences (fences constructed between two owners’ properties) are considered to be the responsibility of both owners. This means “both owners are responsible for keeping the fence in good repair, and neither may remove it without the other’s permission.”
Essex County Fence Law
There are no applicable ordinances for Essex County that apply to fences in Salem, MA.
Salem MA Fence Law
Salem, MA has a set of ordinances which includes some references to fences.
Code of Ordinance
ARTICLE I, Section 38-6, Encroachments
No person shall erect or cause to be erected any fence or building on the line of any street without first ascertaining the bounds of the street from the director of public services. If any encroachment shall be made upon any street and the person making it neglects or refuses to remove the encroachment, the director of public services shall cause the person so offending to be prosecuted for such offense.
ARTICLE I, Section 38-11, Barbed Wire Fences Along Sidewalks
No barbed wire fence shall be built or maintained within six feet above the ground along any sidewalk located on or upon any public street or highway.
Zoning Ordinance
Section 4.0 Dimensional Requirements
4.1.1 Table of Dimensional Requirements. No building or structure shall be constructed nor shall any existing building or structure be enlarged or altered except in conformance with the Table of Dimensional Requirements as to lot coverage, lot area, land area per dwelling unit, lot width, front, side and rear setbacks, and maximum height of structures, except as may otherwise be provided elsewhere herein. Not more than one (1) dwelling shall be built upon any such lot unless otherwise authorized herein. No existing lot shall be changed in size or shape so as to result in a violation of the requirements set forth in said Table.
***Retaining walls, boundary walls and/or fences may be built abutting the property line. The height of the retaining walls, boundary walls and/or fences shall be measured on the inside face of the structure on the owner’s side.
Maximum height of fences and bordering walls:
Non-Residential Uses: 10ft.
Residential or Mixed Uses: 6ft.
Section 6.0: Special Regulations
6.8 – Visibility at Intersections. In order to provide unobstructed visibility at intersections, no sign, fence, wall, hedge or other structure or planting of more than three (3) feet above the established street grade shall be erected, placed or maintained within the triangular area formed by the intersection street lines and a straight line joining said street lines at points which are twenty-five (25) feet distant from the point of intersection, measured along said street lines.
Section 8.0: Special District Regulations
Entrance Corridor Overlay District (ECOD) / North River Canal Corridor (NRCC)
In order to maintain and maximize aesthetic views and sight lines, all fences along the front and side lot lines shall comply with the following standards:
1. No fence along front or side lot line shall be more than four (4) feet in height, as measured from the curb level of the street, or average grade elevation of the land where the fence is to be located, whichever is deemed appropriate.
2. Chain link and wire fences are prohibited along front and side lot lines.
3. Any fence constructed within an ECOD shall require a fence permit issued by the City building department.
http://www.salem.com/Pages/SalemMA_Clerk/ordinances
Salem MA Pool Fences
In Salem, “Pools are also required to be enclosed by a fence at least 48” high with a self latching gate at least 36” wide. Rail fences are not sufficient to meet this requirement. Salem City Ordinance requires the fence even if the above ground pool has a barrier mounted on the top of the pool.”
A pool is defined as, “any structure intended for swimming or bathing and containing water 24” or more. Spas and hot tubs are considered pools if water is 24” deep or more.”
Local HOAs
As a reminder, be sure to check with your local housing association, if you have one, to ensure that there are no additional bylaws which may impact your fence or fence installation.
If you own a fence that needs repair, or if you’re considering the construction of a new fence or something that requires a fence, like a pool, make sure that you’ve reviewed the applicable laws and regulations. For a professional assessment of your fencing requirements, please contact the fence pro’s at Malone Fence Company. We can offer fence options and recommendations, as well as assist with your understanding of applicable fence laws and ordinances. Contact us today!
Image courtesy of Mr. T in DC, Flickr.
